Pop v. I.N.S., 00-3962.

• Decision Date: 28 January 2002
• Docket Number: No. 00-3962.,00-3962.
• Citation: 279 F.3d 457
• Parties: Marcel POP, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 457

279 F.3d 457

Marcel POP, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 00-3962.

United States Court of Appeals, Seventh Circuit.

Argued April 20, 2001.

Decided January 28, 2002.

Scott D. Pollock (argued), Pollack & Associates, Chicago, IL, for Petitioner.

Jennifer Giambastiani, INS, Chicago, IL, Nancy E. Friedman (argued), Dept. of Justice, Civ. Div., Immigration Lit., Washington, DC, for Respondent.

Before EASTERBROOK, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Petitioner Marcel Pop, a thirty-five-year-old native and citizen of Romania, sought asylum as a political refugee. The immigration judge ("IJ") denied Pop's application for asylum, and Pop appealed to the Board of Immigration Appeals ("BIA"), seeking a remand and alleging ineffective assistance of counsel. The BIA denied Pop's appeal because Pop was not prejudiced by his counsel's allegedly deficient performance. We affirm.

I. History

Pop, a native and citizen of Romania, entered the United States on February 8, 1991, and applied to the INS for political asylum. On May 17, 1993, the INS denied his request and began deportation proceedings. Pop then retained Judd Azulay to represent him during these proceedings. On December 14, 1993, Azulay filed a written application for asylum for Pop, in which Pop claimed that the oppressive Communist regimes under the dictatorship of Ceausescu persecuted him for his political beliefs. Further, Pop claimed that the Romanian government under Ion Iliescu, Ceausescu's democratically-elected successor, also persecuted him for his political beliefs. According to the application, in 1985, Pop was approached by an unnamed person who asked him to join the Communist Party and that following his refusal to join, he was subjected to surveillance and interrogation by Ceausescu's notorious police force, the Securitate, regarding his political beliefs. Pop explained that after the execution of Ceausescu in December 1989, he joined the Liberal Party that opposed the then-interim government headed by Iliescu. Pop's application explained that he was active at Liberal Party meetings and in numerous demonstrations against the Iliescu government. Pop's application stated that in June 1990, he was arrested and detained for twenty-four hours on two occasions, and that during each detention, he was interrogated and beaten by the SIR, the successor to the Securitate. Pop's application further explained that the SIR warned him to cease his political involvement and criticism of the Iliescu government and that he was subsequently denied job promotions and salary increases on account of his beliefs. Finally, Pop's application stated that Pop believed he would be arrested and interrogated, be denied employment, have his life threatened, and be imprisoned because of his opposition to the then-current Iliescu government if he were to return to Romania.

Deportation hearings commenced on July 28, 1993, and Pop conceded deportability but sought asylum as a refugee. The proceedings were continued until November 4, 1994, at which time Azulay sought an additional continuance in order to submit several newspaper articles addressing the current socio-political conditions in Romania. This continuance was denied. Pop was then sworn as a witness and stated that the information in his asylum application was true and correct. Further, Pop testified that he had nothing to add to the application and that it adequately and completely represented his claim for asylum. Other than Pop's application, Azulay did not submit any additional evidence on Pop's behalf.

The IJ then issued his oral decision. The IJ began by reviewing the information contained in Pop's application regarding his political activities in Romania. The IJ then reviewed an Advisory Opinion from the State Department ("Advisory Opinion"), which stated that conditions in Romania had been profoundly transformed since Ceausescu's overthrow in 1989 and that the current government respected civil liberties. The Advisory Opinion explained that political conditions in Romania had improved, and therefore, past mistreatment under Ceausescu or in 1990 would not lead to mistreatment by the current government. The IJ concluded that Pop had not established either past persecution or a well-founded fear of future persecution and thus, he denied Pop's claim for asylum.

On November 4, 1994, Azulay filed a Notice of Appeal and on March 30, 1995, Azulay filed a brief that challenged, inter alia, the IJ's conclusions on asylum. Pop retained new counsel and on August 6, 1998, filed a motion to reopen or in the alternative, to remand his case.¹ The motion asserted that Azulay provided ineffective assistance to Pop by failing to properly investigate all of the facts of his case. Specifically, the motion contended that Pop's asylum application lacked information regarding the granting of asylum to Pop's ex-wife, Mariana, based on the same factual background as Pop's claim. Pop also submitted his own affidavit, numerous newspaper articles, and an affidavit from Mariana in support of his motion to remand.

Initially, Pop's affidavit contended that Azulay failed to encourage him to contact Mariana and that Mariana would have supported his claim. Pop's affidavit did not detail any additional past persecution that Pop suffered but did outline persecution suffered by Mariana and her mother. For example, Pop stated that he witnessed the Securitate question Mariana and her mother and that the Securitate harassed Mariana's mother and father for many years. The newspaper articles addressed various actions the Romanian government had taken since the fall of Ceausescu.

Mariana's affidavit stated that Pop left her in 1990, that she soon thereafter obtained a divorce, and that she and Pop did not talk again until 1995. Mariana stated that she came to the United States in November 1992 and was granted asylum soon thereafter. Although she did not attach her asylum application, Mariana detailed over fifteen years of persecution that she, her father, and her mother endured due to the actions of her father, a prominent member of the Jehovah's Witnesses. Mariana also stated that her family was persecuted by the Securitate because Mariana's aunt had emigrated to the United States, and that the Securitate sought information about her aunt. According to Mariana, the Securitate also attempted to recruit her to spy on her friends, family, and neighbors, but that Mariana refused to work with the Securitate. Further, Mariana stated that her and Pop's son, Alexander, was granted asylum because of her permanent resident alien status. Mariana's affidavit also supported Pop's claim that he was persecuted for his political opinions between 1985 and 1991. Finally, Mariana's affidavit stated that Mariana and Pop were active in opposing the Iliescu government from 1989 until 1991 and that Mariana was "certain that [Pop] will be persecuted if he returns to Romania, even though the government has changed again."

On October 17, 2000, the BIA denied Pop's appeal and his motion to remand. The BIA first addressed the appeal and noted that the facts presented in Pop's asylum application did not amount to past persecution. Further, the BIA noted that the 1992 State Department Country Report ("Country Report") indicated that political conditions in Romania had improved considerably, and thus made it unlikely that Pop would face persecution in the future. In denying Pop's motion to remand, the BIA found that Pop was not prejudiced by any alleged deficiency in Azulay's representation. The BIA noted that "current country conditions have [been] so altered as to remove any presumption that past mistreatment under Ceausescu or in the chaotic first year after his overthrow will lead to mistreatment in the future ... despite the suspicions of some people regarding leaders who held office under the prior regime." The BIA also stated that Pop's fear of future persecution was not reasonable because it was based entirely on incidents that occurred prior to the 1992 elections. Addressing the newspaper articles, the BIA found that they undermined Pop's position because they supported the IJ's conclusion that persons who express their political opinions in Romania are not currently persecuted by the Romanian government. The BIA concluded that Pop was not prejudiced by Azulay's allegedly deficient performance because Pop would still have been deported had Azulay done what Pop asserted was required. Pop then appealed the BIA's denial of his motion to remand.

II. Analysis

We review the BIA's decision to deny a motion to remand for abuse of discretion, mindful of the broad discretion we must afford such decisions. See INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). We must affirm the BIA's denial "unless it was made without a rational explanation, it inexplicably departed from established policies, or it rested on an impermissible basis." See Man v. INS, 69 F.3d 835, 837 (7th Cir.1995) (quotation omitted). Pop argues that the BIA should have remanded his case because Azulay's performance was constitutionally deficient. In this circuit, however, whether there exists a constitutional right to effective assistance of counsel in immigration cases is virtually foreclosed. See Stroe v. INS, 256 F.3d 498, 501 (7th Cir.2001) (implying that alien has no right to effective counsel unless INS acts as a "prosecutor"). Even assuming Pop's claim is not foreclosed, in order to succeed on such a claim, he must — at a minimum — show actual prejudice. See Mojsilovic v. INS, 156 F.3d 743, 749 (7th Cir.1998). Because Pop has failed to establish actual prejudice, we need not determine the extent of the right to effective assistance of counsel in immigration cases.

In order to obtain asylum, Pop must establish that he is a "refugee." See 8 U.S.C. § 1158(b)(1). A "refugee" is defined as one who is unable or unwilling...